In 2010, Congress passed the Patient Protection and Affordable Care Act (ACA) to increase the number of Americans covered by health insurance, decrease the costs of health care, and provide important protections to health care consumers. In April 2018, Texas and 19 other states, as well as two individual plaintiffs, filed a complaint in the U.S. District Court for the Northern District of Texas, arguing that the law’s individual mandate provision (Section 5000A) is unconstitutional, and that the rest of the law is inseverable from that provision and therefore must also fall.  While the Department of Justice normally defends the validity of Acts of Congress when they are challenged in court, here the Department has joined the plaintiffs in attacking the validity of the individual mandate and has also argued that other key provisions of the law are inseverable from its individual mandate and thus should be invalidated.  The district court agreed with the plaintiffs, holding that the individual mandate is unconstitutional, that the mandate is inseverable from the rest of the ACA, and that the entire ACA therefore cannot stand.  California and other states that had previously intervened in the case appealed to the U.S. Court of Appeals for the Fifth Circuit.

Pursuant to H. Res. 6 (2019), the U.S. House of Representatives of the 116th Congress, represented by the General Counsel of the House of Representatives, Munger, Tolles & Olson, and CAC, moved to intervene as a defendant, and the Fifth Circuit granted the motion.

On March 25, 2019, the House of Representatives filed its opening brief, making three main points: 1) the plaintiffs lack standing to challenge Section 5000A; 2) Section 5000A, as amended in 2017, is constitutional, and 3) even if Section 5000A is unconstitutional, the provision is severable from the remainder of the ACA.

First, the brief argues that neither the individual plaintiffs nor the state plaintiffs have standing to challenge Section 5000A. The individual plaintiffs do not have standing because Section 5000A, as construed by the Supreme Court, does not require them to purchase health insurance.  Moreover, with the shared responsibility payment set at zero following the 2017 amendment, the government no longer has any ability to enforce the mandate, and there is therefore no injury for failing to comply.  The state plaintiffs also lack standing because they allege only a speculative chain of inferences that Section 5000A will somehow result in additional enrollment in Medicaid and CHIP and thereby burden state finances, despite the government having no ability to enforce the mandate after the 2017 amendment.  They also fail to offer any evidence supporting their claim.

Second, the brief argues that because Section 5000A as amended has no binding effect or enforcement mechanism, and therefore does not alter anyone’s legal rights, its validity no longer depends on an enumerated power. And even if the Court concludes that Section 5000A must be grounded in an enumerated power, the Court should still uphold it as necessary and proper to the exercise of Congress’ taxing and commerce powers.

Third and finally, even if the Court concludes that the plaintiffs have standing and that Section 5000A is unconstitutional, Section 5000A should be severed from the remainder of the ACA. As the Supreme Court recognized in National Federation of Independent Business v. Sebelius, the “touchstone for any decision about remedy is legislative intent,” and here Congress’s intent could not be clearer.  By leaving the rest of the Act intact when it reduced the shared-responsibility payment to zero in 2017, Congress unambiguously established that it intended the rest of the law to function in the absence of an enforceable mandate.  Moreover, evidence since the 2017 amendment makes clear that the remaining provisions of the Act, including the protections for people with preexisting conditions, can and do function effectively without an enforceable mandate.

In a 2-1 decision, the Fifth Circuit held that the plaintiff-states have standing to bring this case, and that Section 5000A is unconstitutional.  On the issue of severability, the court remanded the issue to the district court, instructing that court to “explain with more precision what provisions of the post-2017 ACA are indeed inseverable from the individual mandate.”  In dissent, Judge King concluded that the plaintiffs did not have standing, but noted that if she had reached the merits of the argument, she would have concluded that the individual mandate is constitutional and also entirely severable from the remainder of the law.